Serbia Justice Functional Review

Introduction

Overall Conclusions and Priorities

Overall, Serbia’s judicial system performs at a lower standard than that of EU Member States. In terms of efficiency, the system struggles with a legacy of bureaucracy and red tape. New cases proceed at an improved pace, and several efficiency parameters are within or close to the range currently found among EU Member States. However, courts are clogged with old cases that go unattended. Arcane processes cause delays, and procedural abuses by parties go largely unchecked. The quality of justice services is affected by poorly drafted legislation, inconsistent jurisprudence and high appeal rates. Rudimentary tools to standardize quality in service delivery, such as templates and checklists for routine procedures, do not exist. The judiciary remains marred by perceptions of corruption and undue influence, and while performance in this area is improving, it continues to lag EU Member States and regional neighbors. Access to justice services is constrained by high court and attorney fees, and attorney fees blow out further due to delays and inefficiencies in case processing. Support for indigent court users is inadequate. Access to basic legal information, such as consolidated legislation and lay formats of basic laws, is insufficient. The prospect of alternative dispute resolution holds promise but remains elusive after a series of failed reforms.

With lighter workloads and more judges and staff, there lay significant opportunities to improve sector performance. However, these opportunities were not realized.

In recent years, one could reasonably have expected the judicial system to have performed much
better than it has. Workloads decreased dramatically due to
reductions in incoming caseloads and increases in resources,
including massive and growing arrears and further appointments of
hundreds judges and staff. With lighter workloads and more judges
and staff, there lay significant opportunities to improve sector
performance. However, these opportunities were not realized.7 In
the path towards EU accession, the Serbian judicial system can ill
afford to miss such opportunities again.

Instead, the sector embarked on successive reforms which have caused much upheaval but produced limited results in terms of performance improvement. These included two network reorganizations, the dismissal and reappointment of more than 800 judges and prosecutors, massive file transfers, changes in roles and responsibilities between actors, and the passage of ill-conceived laws that have quickly become ‘stillborn’ and required successive changes. These efforts consumed the energy of stakeholders and generated much work. However, they have done little to alter performance, which remained lackluster. Meanwhile, simpler reforms that could generate higher impact have not been prioritized, such as critical ICT upgrades, continuing training, lay guides, process simplification and managerial support for Court Presidents. Now, the sector craves stability and requires a more measured approach to reform that focuses on practical improvements to services for users.

There are isolated sites of innovation, often in courts outside of Belgrade. However, innovators have rarely been recognized and lessons have not been shared or replicated.

There is excessive variation across courts in terms of service delivery, which undermines access to
justice and uniformity in the application of law. Several courts
perform extremely well against many of the agreed indicators in the
Performance Framework, but there are pockets of under-performing
courts that reflect poorly on the rest of the sector and fail to deliver
the services people need. Workloads are not equitably distributed,
leaving some courts are very busy, and others demonstrably less so.
Court practices differ across the country in areas of importance for court users, such as complaints handling and the application of court fee waivers for indigent court users. Progress has been noted in some areas of court management, such as ICT improvements and procedural reforms. However, gains are fragile and have yet to instill changes in behavior among judges, prosecutors, attorneys and court staff. There are isolated sites of innovation in service delivery, often in courts outside of Belgrade, where progress has been made in specific areas, such as backlog reduction, service of process and stakeholder coordination. However, these innovations have been driven by the personal initiative of individuals or with donor support. Innovators have rarely been recognized and the lessons from innovations have not been shared in a systemic way or replicated in other courts. As a result, averages and generalizations about the Serbian judiciary are misleading. The Functional Review thus attempts to document key variations and inconsistencies across the jurisdiction and possible drivers for these.

The quantity and quality of available data has improved significantly in recent years – the next step will be for leaders to use this data to inform decision making and drive performance.

The extraordinary heterogeneity highlights the need for a more consistent and coherent approach to performance management. The sector lacks a framework to measure and manage performance.8 Reforms are often initiated in a haphazard manner, without analysis of fiscal or operational impacts, and
implementation is rarely monitored. Decision-makers describe how
they lurch from crisis to crisis, addressing the symptoms rather than
the causes of systemic under-performance, and this is particularly
prevalent in human resource and financial management. The
fragmentation of governance and management responsibilities
stalls progress and dilutes accountability, including in much needed
areas such as budget planning, process re-engineering, ICT
investments and infrastructure improvements. In a positive development, the quantity and quality of available data has improved significantly in recent years – the next step will be for leaders to use this data to inform decision making and drive performance.

Serbia’s judicial sector is not under-resourced, but resources are not allocated effectively nor are they executed efficiently. The overall level of budgetary funding is consistent with EU averages, both on a per capita basis and as a share of GDP. However, budget planning fails to take account of service delivery needs, recent reforms, or Serbia’s Chapter 23 accession aspirations. The large wage bill crowds out other expenditures, leaving little room for much-needed investments in training,9 ICT, and infrastructure.10 Human resources are mismatched with needs – there is an excessive number of judges at the top11 and low-skilled ancillary staff at the bottom,12 but a ‘missing middle’ of mid-level specialist staff that will be necessary to support judicial modernization. And despite a huge stock of human resources, there is very little investment in ongoing training and staff development. Resources are not programed jointly, and there is little coordination, and occasional competition, among fragmented stakeholders responsible for different resources. As a result, sector productivity is low and the judiciary represents poor value-for-money for the State. The judiciary is thus poorly placed to argue for a larger resource envelope, and in the current fiscal environment, budget cuts could be expected. The sector will need to learn to ‘do more with less’ through better planning and coordination in resource allocation and execution. Without significant changes in these areas, the sector will be incapable of delivering on the many reforms that will be necessary to meet EU accession requirements.

Serbia is entering the negotiation phase for Chapter 23 with a sound knowledge base.

Looking ahead, a series of tough decisions will be required to align the sector’s performance with
EU benchmarks. Serbia is entering the negotiation phase for
Chapter 23 with a sound knowledge base. With the requisite
commitment and will, alignment with EU levels of performance is
achievable in the longer term. The Functional Review provides a
comprehensive set of recommendations that are administratively and financially feasible, and which align with the NJRS goals and Chapter 23 accession requirements.

Just as the challenges analyzed in the Functional Review are inter-related, the recommendations are mutually reinforcing. Serbian authorities can take comfort in that, at this current stage of development, they need not trade off one performance dimension against the other. Improvements in efficiency would yield higher quality of services and vice-versa, and improvement in either would improve access to justice. However, the implementation of recommendations would require a level of coordination among stakeholders that has yet to be demonstrated.

Of the many findings and recommendations outlined in the Report, the Functional Review team suggests that leaders focus on the following seven priorities which can set the Serbian judiciary on a critical path to performance improvement. Without significant progress in these seven priority areas, the sector will likely be unable to achieve the kind of transformation that would be necessary to align performance with that of EU Member States.

Develop a performance framework that tracks the performance of courts and PPOs against a targeted list of key performance indicators. The Performance Framework Matrix (at Annex 2) could provide a starting point for selecting a targeted list of indicators to drive performance. To reduce excessive variation and lack of uniformity, efforts should focus on lifting the performance of the worst-performing courts to the current average, while rewarding high-performing courts. Court Presidents and Heads of PPOs should be required to monitor and report periodically on their performance against a small number of key performance indicators, and onerous reporting in other areas could be reduced. The SCC and RPPO can play a motivational role with courts and PPOs respectively, by recognizing fast-improvers and high-performers through non-financial awards and by showcasing their work. They could also facilitate more intensive dialogue among their respective managers (Courts Presidents, Heads of Departments, Court Managers, Heads of PPOs etc.) to exchange good practices and apply lessons in the course of addressing key performance challenges. User satisfaction will be an important aspect of performance measurement, so the Councils should prepare to conduct user surveys in the medium term. (See Recommendations 1 and 26 and next steps.)

Ensure that courts use the full functionality of their case management systems to improve consistency of practice and support evidence-based decision-making.13 Some courts are already using most of the functionality available to them and have seen first-hand the benefits in terms of performance improvement. The SCC could issue instructions to require consistency in practice across all courts. Court staff should be required to enter case data into relevant fields and scan documents to the maximum extent possible. All courts should be required to allocate cases using the existing random case assignment functionality and report on instances when overriding the algorithm was necessary. Scheduling of hearings should be done electronically. With a more consistent approach to case management, Court Presidents could monitor results in their courts through periodic managerial reports, including Ageing Lists. To support courts in meeting these requirements, training would be necessary for Court Presidents, judges and court staff on the functionalities and benefits of systems, in addition to ICT literacy courses. For its part, the MOJ should fund increases in server capacity and critical upgrades to existing systems so that relevant data fields are mandatory and managerial reports are easy to produce. (See Recommendations 6, 25, 49 and next steps.)

Develop a comprehensive continuing training program for judges, prosecutors and court staff. Despite the massive stock of human resources, the sector invests too little in training and staff development. The Judicial Academy could spearhead the initiative to boost the capacity of the sector’s existing human resources and become the hub for learning across the sector. The Academy could start by rebalancing its existing resources (i.e. reducing the budget for initial training activities and increasing the budget for continuing training) and shifting the work programs of its staff more towards continuing training activities. A training needs assessment should be conducted as a priority. Based on it, a comprehensive program of training for judges, prosecutors and court staff could be launched, covering both substantive topics and practical skills, with a particular emphasis on aligning the judiciary with European practice. Tailored trainings should be provided to meet the specific needs of key actors, including Court Presidents, Heads of PPOs, court secretaries and advisors. (See Recommendation 38 and next steps.)

Reform procedural laws to simplify the service of process, and start simplifying business processes. Service of process is currently a severe bottleneck in case processing across all court types and case types. This could be eased by reducing the number of services that are required in each case and creating a presumption of continual service after the first service. Internal procedures in courts could also be streamlined, applying lessons from the Subotica Basic Court. The MOJ could work closely with courts to analyze options for improving the modality of delivery and incentivizing the performance of servers, applying lessons from the Novi Sad Misdemeanor Court, the Uzice Basic Court and the Vrsac Basic Court. This will likely involve either amending MOUs with the Postal Service or moving away from the Postal Service altogether. Data on frequency, success rates and costs should be collected and monitored. Training should be provided to support judges, court staff and process servers to ensure effective implementation of a simplified system for service of process. Following reform in this bottleneck, simplification and streamlining of other business processes could reduce red tape in courts and PPOs. In the meantime, user checklists could be developed to assist court users to navigate procedures, applying lessons from the Vrsac Basic Court. (See Recommendations 8, 27 and next steps.)

Eliminate the backlog of old utility bill enforcement cases. Mass resolution of backlogged enforcement cases in Basic Courts is unlikely to change service delivery in real terms because most cases are inactive and enforcement involves little judicial work. However, resolution will be necessary as Serbia embarks on the Chapter 23 process. Clearing the desks of around 1.7 million pending enforcement cases would also signal a fresh start for many courts. This would likely boost morale and dramatically improve Serbia’s performance metrics among EU comparator countries. Basic Courts should dedicate more staff and effort to working through the enforcement backlog, applying lessons from the Vrsac Basic Court’s evidence-based approach. They should also identify all available opportunities to purge old inactive utility bill cases, applying lessons from Belgrade First Basic Court’s experience with Infostan. Meanwhile, Basic and Higher Courts should analyze the backlog of non-enforcement cases using comprehensive Ageing Lists and prioritize the resolution of those cases. Close monitoring and ongoing support from the SCC will continue to be required. Recognition by the SCC of high-performers may also motivate Basic Courts to complete the task. (See Recommendation 2 and next steps)

Develop a more realistic budget within the existing resource envelope. As the resource envelope is highly unlikely to increase in the tight fiscal environment, performance improvement will require that the sector ‘does more with less’. Sector leaders in the HJC, SCC, MOJ, SPC and RPPO could coordinate the preparation of future annual work plans and negotiate trade-offs within the existing resource envelope to prioritize expenditures that boost productivity and performance (such as training, ICT upgrades, process re-engineering and procedural efficiency reforms) and forego expenditures in other areas. Leaders should clarify responsibilities for capital and current expenditure to overcome paralysis and low disbursement in those areas. The HJC and SPC will require technical assistance and some software to assume their functions. For example as a priority, the SPC and HJC should automate their financial management functions to enable greater flexibility in mid-year reallocations of resources for courts and PPOs. The MOJ, together with the HJC and SPC, should develop a plan to reduce arrears over time, including through better sector coordination and greater commitment control in individual courts and PPOs. (See Recommendations 32, 33, 34 and next steps.)

Adjust the resource mix over time by gradually reducing the wage bill and increasing investments in productivity and innovation. The HJC should freeze judicial appointments, as the judiciary already has an over-supply of permanent judges, particularly in light of falling trends in incoming cases, shrinking mandates for courts and European benchmarks. The HJC can gradually reduce the number of judges by not replacing retiring judges and promoting judges from within the system where needs arise.14 For its part, the MOJ should maintain the recruitment freeze on staff positions, phase out the ‘shadow workforce’ of temporary staff and volunteers, and implement a staff reduction program, focused on low-skilled ancillary staff, including registry staff in verification roles. With the savings, the Council and the courts should invest in mid-level technical staff with specialized skills (ICT, research, analysis, court management etc.) to support the creation a modern administration capable of delivering to European standards. The sector also has significant needs for infrastructure improvements and ICT upgrades. The MOJ could start by conducting ICT and infrastructure stock takes and building capacity within its Investment Department. In exchange for progress in the implementation of other Functional Review recommendations, donors may be willing to contribute funds in support of the implementation of this plan. Adjusting the resource mix will require a coordinated approach by sector leaders and the approval of the MOF but it is critical to re-shaping the structure of the judiciary to drive performance. (See Recommendation 24, 25, 35 and next steps.)